I Don’t Use Marijuana But Tested Positive for THC: What Happened?

It’s no secret that the military has a zero-tolerance policy when it comes to drug abuse, including the use of marijuana. What service members may not know, however, is that the military prohibits the use of any cannabis or hemp-derived products, even those sold commercially. Service members who test positive for any form of tetrahydrocannabinol (THC) are subject to discipline under the UCMJ and mandatory separation processing.

If you have tested positive for THC or another drug, it is critical that you protect your rights and your military career. MJA has fought and won drug abuse cases for service members across the military branches. Contact one of our military defense lawyers today to learn more.

ARTICLE 112, UCMJ

Article 112a, UCMJ, criminalizes the use, possession, or distribution of a controlled substance. Common controlled substances include opium, heroin, cocaine, amphetamines, LSD, and marijuana, to name a few. A full list of prohibited substances can be found in the Controlled Substances Act (21 U.S.C. § 812).

However, not all products banned by the military are “controlled” substances under federal law.

The military also prohibits the wrongful use of certain natural substances (e.g. fungi), chemicals wrongfully used as inhalants, propellants, and even prescribed or over-the-counter medication if used without a prescription or with the intent to get high. This prohibition includes the use of any cannabidiol (CBD) products (e.g. edibles, oils, creams, drinks, vape cartridges, etc) which are often legal and can be purchased online or at a local gas station.

DELTA-8 THC VERSUS DELTA 9-THC

Historically, the military only tested for delta-9 THC (the controlled substance) during urinalysis testing. In 2021, the Department of Defense (DoD) expanded its urinalysis screening to also test for delta-8 THC (i.e. the commercially available type that is not a prohibited controlled substance).

Delta-8 THC is similar to delta-9 THC and exists naturally in cannabis plants at low levels. Delta-8 THC is still, however, a psychoactive cannabinoid that can cause a user to experience a type of “high”. For this reason, the DoD prohibits  service members from ingesting or otherwise using any product containing delta-8 THC.

Because Delta-8 THC is not a controlled substance under federal law, service members who test positive for Delta-8 THC cannot be charged with violating Article 112a, UCMJ. Instead, service members who test positive for Delta-8 THC may only be charged under Article 92, UCMJ for violating a lawful order. Service members who unknowingly consumed a product containing delta-8 THC may be able to assert a defense of innocent ingestion.

MANDATORY “PROCESSING” FOR SEPARATION

The Department of Defense (DoD) has a zero-tolerance policy on drug abuse. This policy requires that any substantiated incident of drug abuse, including the use of delta 8-THC,  be subject to mandatory processing. Mandatory processing is not the same as mandatory separation. Whether separation will occur depends on numerous factors.

Simple cases of use or possession are generally handled administratively through nonjudicial punishment or summary court-martial. More serious cases may result in criminal charges at court-martial.

Service members with less than 6 years of military service do not rate a separation board. As a result, they can be administratively separated from the military with a general (under honorable conditions) characterization of service through simple notification procedures.

Service members with more than 6 years of military service are entitled to a separation board hearing. For them, mandatory processing can mean either a board hearing or court-martial.

MJA VICTORIES 

MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. Examples of successful cases include: 

• A Lance Corporal (E-3) in the Marine Corps tested positive for cocaine following an all-hands urinalysis. The Marine was notified of involuntary administrative separation and convinced by his command to sign a board waiver, allowing him to receive an Other than Honorable (OTH) characterization of service. MJA was retained days before the Marine’s separation. MJA immediately withdrew the board waiver and requested an extension of time to submit matters in rebuttal. MJA then provided evidence to show that the Marine had not used cocaine and that the urinalysis result was in error. The Marine was retained on active duty and allowed to continue his military service. 
• A Petty Officer First Class (E-6) in the Navy tested positive for cocaine twice following two all-hands urinalyses. The Sailor, who had served in the Navy for almost 18 years, was notified of nonjudicial punishment (NJP) and was facing potential involuntary administrative separation from the Navy. MJA conducted an investigation to uncover evidence favorable to our case and to show that the Sailor innocently ingested cocaine by drinking coca tea from Peru. Scientific studies conclusively link consumption of coca tea with positive drug tests for cocaine. Based on the evidence submitted by MJA, the Sailor was found not guilty at NJP and remained on active duty.
• A pilot in the Air Force was notified of administrative discharge procedures for allegations of drug abuse. While pending separation, the Officer was arrested for DUI and awarded nonjudicial punishment and a letter of reprimand. MJA guided the Officer through the lengthy separation process and submitted extensive written matters in support. After much effort, the Officer was honorably discharged from the Air Force. 
• A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.  
• A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. 
• A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard. 
• A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
• A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

A positive urinalysis for any form of THC can be enough to destroy a military career. Service members facing drug abuse allegations risk losing their career, healthcare, GI bill, and retirement benefits, if separated. Those who face court-martial risk a federal drug conviction, punitive discharge, and serious confinement time. If you are suspected of drug abuse or have been asked to take a urinalysis, it is critical that you speak with an experienced military defense attorney. Contact our military defense lawyers now to learn more.